There is no dispute that the nation’s immigration court system is drowning in its own caseload. It began under the Obama administration’s ramped-up efforts to deport people in the country illegally who had recently crossed the border or who had criminal histories, and accelerated under President Trump’s campaign to roust as many undocumented people as he can. Over the past two years the backlog of active deportation cases has increased from 516,000 to 685,000, according to the Transactional Records Access Clearinghouse at Syracuse University, and the cases have taken, on average, almost two years each to be decided — 711 days.
Now Atty. Gen. Jeff Sessions is pushing immigration judges to speed things up. Starting in October, the department will measure judges’ performance by a new standard that requires each of them to clear 700 cases a year, with fewer than 15% of decisions sent back by appeals courts, in order to receive a “satisfactory” rating. That’s an assembly line, not a judicial system, and it runs the very real risk of subverting due process rights as individual judges place their job security ahead of justice.
The smarter way to reduce the backlog of pending cases is to expand the court system itself.
The immigration courts — a branch of the Justice Department, not part of the independent judiciary — have been understaffed for years. Making matters worse, the pace of proceedings is slowed not only by sheer volume, but also by the absence of attorneys to steer clients through the process (immigrants facing civil deportation proceedings are not entitled to government-supplied lawyers, as they would be in criminal cases).
Other challenges include the difficulty in procuring and verifying documents from other (sometimes unstable) countries; and the time required to weigh evidence in complex cases, including requests for asylum. Judges and immigration lawyers have warned that speeding up the process could increase the number of appealable decisions because there would be legitimate questions over whether a decision to refuse to hear a witness as duplicative, or to not admit further evidence, is based not on the merits but on the fact that the judge is lagging behind in closing cases.
As it is, judges clear an average of 678 cases a year, so pushing that up to 700 might not seem like a big change. But the clearance rate is well below that average in courts where cases are more complex, and there, the effect of the new quotas could be severe. Judges near the border with Mexico handling cases involving new arrivals are able to make faster decisions than, for instance, a judge in the interior of the country handling cases involving people who have established deep roots or have dependents who are American citizens. Cases involving unaccompanied minors can be particularly complex because the law allows a variety of relief options, including requesting asylum or seeking “special immigrant juvenile status” if they have been abused or abandoned by their parents. Given the totality of Trump and Sessions’ attitudes toward people living in the country without permission, it’s not unreasonable to see this imposition of quotas as a pretext for speeding up deportations, due process be damned.
The government, of course, has a right to establish immigration policies and a duty to secure borders. But even noncitizens enjoy the protections of the Constitution, including the right to due process, when they are in the country. This attempt to accelerate the pace of justice through a management-directed quota system imperils that.
The smarter way to reduce the backlog of pending cases is to expand the court system itself, which Congress, to its credit, has finally begun to do. The current budget includes funding to add 100 judges to the 350 existing positions, and money to speed up the hiring process. Besides, as a Government Accountability Office report last June found, delays in individual cases usually are due to matters beyond a judge’s control. About a quarter of postponements, or continuances, were the result of technical or other operational problems in the courtroom, or the fault of the Department of Homeland Security, such as not having the deportation target available for the hearing. Forcing the judges to speed things up when they don’t control the things that slow the system down will, in all likelihood, make the system more unfair.